Being Mentally Retarded Is Now a Matter of Life and Death

Being Mentally Retarded Is Now a Matter of Life and Death

We'll never actually know what was in Daryl Renard Atkins' mind when he and an accomplice murdered and robbed Eric Nesbitt six years ago. But by emphasizing the eight bullets left smoldering in the victim and a history of violent crimes, a Virginia prosecutor convinced a jury to sentence Atkins to death based on the "vileness of the offense" and the prospect of future dangerousness.

By June of 2002, however, a divided U.S. Supreme Court took a different tack, saying that perhaps Atkins could not apply the "reasoning, judgment and control of [his] impulses" and did not commit his crime with the same "level of moral culpability that characterizes the most serious adult criminal conduct." The reason for the court's reluctance to uphold Atkins' death sentence was the evidence of his mild mental retardation and its assertion that executing him would violate the Eighth Amendment's prohibition against cruel and unusual punishment.

The ruling in Atkins v Virginia (536 U.S., 122 S. Ct. 2242; 153 L. Ed. 2d 535 [2002]) reversed a Supreme Court precedent set only 13 years earlier in Penry v Lynaugh, 492 U.S. 302 (1989), which held that executing mentally retarded individuals passed constitutional muster. But observing that the Eighth Amendment must "draw its meaning from the evolving standards of decency that mark the progress of a maturing society," Justice Paul Stevens, writing for a six-member majority, said in the recent decision "that death is not a suitable punishment for a mentally retarded criminal."

Rather than settling the issue, however, the decision set off a new debate because it failed to establish any criteria for who is mentally retarded. "To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded," Stevens wrote. "[W]e leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences."

That task is currently underway. But while the clinical standards for mental retardation are relatively clear, the political and legal complexities will mire the process in disputes over how much of the emphasis should be placed on IQ level and how much on the assessment of adaptive functioning.

In an acerbic dissent, Justice Antonin Scalia helped to muddy the waters by fueling what will likely be an ongoing legal fight over who escapes the executioner and who does not. "One need only read the definitions of mental retardation adopted by the American Association of Mental Retardation and the American Psychiatric Association to realize that the symptoms of this condition can readily be feigned," Scalia wrote. "And whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), the capital defendant who feigns mental retardation risks nothing at all."

In another case, James Colburn was spared execution in Texas on Nov. 6, 2002, in light of his paranoid schizophrenia and hallucinations. Colburn has been convicted of stabbing a woman to death. His lawyers also claimed that he was heavily sedated with antipsychotic drugs during his trial.